Symons v City of Perth - [1922] HCA 10

COMPLAINANT,

THE CITY OF PERTH

RESPONDENT. DEFENDANT, Practice-High Court-Appeal from inferior Court of State exercising Federal juris-

diction-Order to review-Order nisi returnable before High Court granted by Judge of Supreme Court of State-Jurisdiction-Rules of the High Court 1911, Part II., Sec. IV., r. 1-Judiciary Act 1903-1920 (No. 6 of 1903- - No. 38 of 1920), sec. 39 (2) (b).

The Rules of the High Court 1911, by Part II., Sec. IV., r. 1, provide that is Appeals to the High Court from decisions of inferior Courts of a State in the exercise of Federal jurisdiction shall be brought in the same manner &. " as are respectively prescribed by the law of the State for bringing appeals from the same Courts to the Supreme Court of the State in like matters."

Held, that where by the law of a State the procedure for appealing from an inferior Court to the Supreme Court is by an order nisi to review granted by a Judge of the Supreme Court, the procedure for appealing to the High Court from that inferior Court when exercising Federal jurisdiction is by an order nisi to review granted by a Justice of the High Court, and a Judge of the Supreme Court of that State has in such a case no jurisdiction to grant an order nisi to review returnable before the High Court.

APPEAL from the Supreme Court of Western Australia to the High Court.

Before a Police Magistrate at Perth in Western Australia, a complaint was heard whereby Hedley Vicars Symons charged that the City of Perth, being a party bound by an award of the Common- wealth Court of Conciliation and Arbitration, committed a specified breach of the award. The complaint having been dismissed, the complainant applied to Burnside J. (a Judge of the Supreme Court

30 CLR 434

of Western Australia) in Chambers for, and was granted, an order mist

calling upon the defendant to show cause before a Justice of the High Court at Sydney why the order of the Police Magistrate dismissing the complaint should not be reviewed on certain grounds.

The matter coming before Starke J. in Chambers was referred by him to the Full Court.

Flannery K.C. (with him Collins), for the appellant. Leverrier K.C. (with him J. A. Ferguson), for the respondent, took preliminary objections :- Under the Judiciary Act an appeal from an inferior Court of a State exercising Federal jurisdiction cannot be brought to a Justice of the High Court, but it must be brought to the Full Court (sec. 20 (c) ). The matter was not properly before Starke J., and he could not refer it to the Full Court; for under the Rules of the High Court, Part II., Sec. IV., r. 1, a Judge of the Supreme Court of a State has no power to grant an order nisi to review return- able before the High Court. The proper procedure is to obtain an order nisi from a Justice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Symons v City of Perth

Details

AGLC: Symons v City of Perth [1922] HCA 10
Case: [1922] HCA 10
Decision Date: 27 April 1922

CaseChat Overview and Summary

This case concerned an appeal from a decision of a Police Magistrate in Perth, Western Australia, to the High Court of Australia. The complainant, Hedley Vicars Symons, had laid a complaint against the City of Perth alleging a breach of an award made by the Commonwealth Court of Conciliation and Arbitration. After the Police Magistrate dismissed the complaint, the complainant sought and obtained an order nisi to review from Burnside J., a Judge of the Supreme Court of Western Australia. This order nisi was made returnable before a Justice of the High Court. The matter was subsequently referred to the Full Court of the High Court.

The central legal issue before the High Court was whether a Judge of a State Supreme Court had the jurisdiction to grant an order nisi to review, which was made returnable before the High Court, in an appeal from an inferior court exercising federal jurisdiction. The respondent raised preliminary objections, arguing that such an order could only be granted by a Justice of the High Court and that the procedure followed was therefore improper.

The High Court, by a majority, held that the appeal was incompetent. The Court interpreted Rule 1 of Part II, Section IV of the Rules of the High Court 1911 to mean that while the *manner* of bringing an appeal to the High Court from an inferior State court exercising federal jurisdiction should mirror the state procedure for appeals to the State Supreme Court, it did not confer power on a State Supreme Court Judge to grant an order nisi returnable before the High Court. Section 39(2) of the Judiciary Act 1903-1920 provided for appeals to the High Court where an appeal lay to the State Supreme Court, but the Rules of the High Court governed the *procedure* for bringing such appeals. The Court found no basis in the Judiciary Act or the Rules for a State Supreme Court Judge to launch an appeal to the High Court.

Consequently, the High Court struck out the appeal. The majority ordered that the appeal be struck out with costs.

Orders